Circular No. 02/2021/TT-BTP guiding the method of calculating time based on actual working sessions and the allocation of costs for legal aid cases

CIRCULAR

Guidelines on calculating time based on actual working sessions

and allocating costs for legal aid cases

 _______________

Pursuant to the Legal Aid Law dated June 20, 2017;

Pursuant to Decree No. 144/2017/NĐ-CP dated December 15, 2017, of the Government detailing certain provisions of the Legal Aid Law;

Pursuant to Decree No. 96/2017/NĐ-CP dated August 16, 2017, issued by the Government on the functions, tasks, powers, and organizational structure of the Ministry of Justice;

At the proposal of the Director of the Legal Aid Agency;

The Minister of Justice issues this Circular guiding the calculation of time based on actual working sessions and allocation of costs for legal aid cases.

PART I

GENERAL PROVISIONS

Article 1. Scope of Regulation and Applicability

Article 1. This Circular guides the calculation of time based on actual working sessions and allocation of costs for legal aid cases to serve as the basis for payment of remuneration and allowances for implementing legal aid cases under the form of participating in litigation or representing outside of litigation.

Article 2. This Circular applies to the following entities:

a) Legal aid officers;

b) Lawyers providing legal aid;

c) Organizations that enter into contracts to provide legal aid;

d) State Legal Aid Centers (hereinafter referred to as Centers), Branches of Centers (hereinafter referred to as Branches); Departments of Justice and other relevant agencies, organizations, and individuals.

Article 2. Implementation Principles

1. Ensuring compliance with legal provisions regarding remuneration, allowances, and procedures for paying remuneration and allowances to persons and organizations providing legal aid.

2. Ensuring legality and reasonableness in declaring time and work performed as the basis for payment of remuneration and allowances for legal aid cases.

3. When declaring time and work performed in legal aid cases, the declarer shall be responsible for the authenticity of the declaration.

4. When confirming time and work performed by persons providing legal aid, the confirmer shall be responsible for the authenticity of the confirmation.

Chapter II

GUIDELINES ON CALCULATING TIME BASED ON ACTUAL WORKING SESSIONS

Article 3. Time based on actual working sessions

1. Time based on actual working sessions (half a working day) shall be applied to legal aid cases under the form of participating in litigation or representing outside of litigation, chosen by the person providing legal aid as the basis for payment of remuneration and allowances for implementing the case.

2. One actual working session is calculated based on four hours of work. In cases where the person providing legal aid works less than four hours, it shall be calculated as follows:

a) Counted as half a working session if the number of working hours is less than three hours;

b) Counted as one working session if the number of working hours is three hours or more.

3. When applying the method of calculating time based on actual working sessions, the person providing legal aid must declare the tasks and time spent on these tasks in the Actual Time Declaration Form (Form TP-TGPL-01) issued together with this Circular.

Article 4. Time for participating in criminal proceedings

1. The basis for calculating the time for providing legal aid in criminal proceedings includes:

a) Participating in interrogations of suspects or taking statements from accused persons, victims, witnesses, and parties involved in criminal cases;

b) Participating in confrontations, identifications, voice recognitions, inspections of crime scenes, autopsies, examinations of marks on bodies, investigative reconstructions, and other procedural activities as required by judicial authorities;

c) Working with judicial personnel or judicial authorities;

d) Investigating, collecting, and evaluating materials, objects, and evidence related to different stages of proceedings;

đ) Working with accused persons at Border Guard Detention Cells, Temporary Detention Centers, Pretrial Detention Centers, Prisons;

e) Meeting with accused persons outside detention facilities or their relatives, victims or their relatives, witnesses, parties involved in criminal cases, and other participants in proceedings;

g) Studying files, making copies, and preparing materials at judicial authorities or at Centers, Branches, or organizations that have entered into contracts to provide legal aid;

h) Preparing defense arguments;

i) Participating in court hearings. If the person providing legal aid attends a hearing but the hearing is postponed without prior notice and not due to the request of the person providing legal aid, the time spent working with judicial authorities or judicial personnel on matters related to the postponement shall be counted;

k) Performing activities related to filing appeals, protests against first-instance judgments, second-instance judgments, or extraordinary review procedures;

l) Performing other reasonable activities as prescribed by law to support defense and protection.

2. Remuneration and allowances for persons providing legal aid when performing tasks specified in points e, g, h, l of Clause 1 of this Article shall not exceed the number of sessions allocated for these tasks according to the corresponding cost allocation for cases set out in Appendix No. 01 issued together with this Circular.

3. The working time of persons providing legal aid must be confirmed by the following entities:

a) Time spent on activities specified in point a of Clause 1 of this Article shall be confirmed by judicial personnel or judicial authorities;

b) Time spent on activities specified in points b, c of Clause 1 of this Article shall be confirmed by judicial personnel or judicial authorities or by persons directly working with the person providing legal aid;

c) Time spent on activities specified in point d of Clause 1 of this Article shall be confirmed by the organization or individual with whom the person providing legal aid directly works;

d) Time spent on activities specified in point đ of Clause 1 of this Article shall be confirmed by the accused person or judicial authorities or border guard officers, temporary detention centers, pretrial detention centers, prisons;

đ) Time spent on activities specified in point e of Clause 1 of this Article shall be confirmed by persons directly working with the person providing legal aid;

e) Time spent on activities specified in point g of Clause 1 of this Article shall be confirmed by judicial personnel or Centers, Branches, or organizations that have entered into contracts to provide legal aid;

g) Time spent on activities specified in points h, k, l of Clause 1 of this Article shall be confirmed by Centers, Branches, or organizations that have entered into contracts to provide legal aid;

h) Time spent on activities specified in point i of Clause 1 of this Article shall be confirmed by Judges or Court Secretaries.

Article 5. Time for participating in civil proceedings

1. The basis for calculating the time to provide legal aid for civil litigation cases includes:

a) Working with the person receiving legal aid and related persons to determine the disputed legal relationship; assessing the conditions for initiating a lawsuit, counterclaim requests, independent claims; advising on writing a lawsuit petition, application for provisional measures, counterclaim petition, independent claim petition, providing evidence to the court; guiding preparation of the lawsuit file or other tasks during the initiation and acceptance stage of the case;

b) Working with the person receiving legal aid, parties involved, and relevant agencies, organizations, and individuals regarding the origin, content of the dispute, evidence proving or other tasks during the pre-trial preparation stage;

c) Participating in meetings to check the submission, access, and public disclosure of evidence; verifying, collecting, and evaluating necessary documents, objects, and evidence;

d) Participating in taking statements from parties, witnesses, and other related persons; participating in appraisal activities, asset valuation, and other litigation participation tasks as required by the prosecution agency;

đ) Participating in mediation as prescribed by law;

e) Working with the prosecutor, prosecution agency at each stage of the proceedings;

g) Meeting with parties, witnesses, and other litigation participants regarding other relevant contents;

h) Studying files, making copies, and preparing materials at the prosecution agency or at the Center, Branch, or organization contracted to provide legal aid;

i) Preparing defense arguments;

k) Participating in court sessions or civil dispute resolution meetings. In cases where the legal aid provider attends the court session but the trial is postponed without their request and without prior notice, the time spent working with the prosecution agency and prosecutor on matters related to the postponement shall be counted;

l) Performing tasks related to appeal, protest against first-instance judgments, appellate judgments, supervisory review, or retrial procedures;

m) Performing other reasonable tasks as prescribed by law to serve the purpose of protection.

2. The remuneration and allowance for the legal aid provider when performing tasks specified in points g, h, i, m of Clause 1 of this Article shall not exceed the number of sessions for performing these tasks according to the allocated expense limit for the case as set out in Appendix No. 02 issued together with this Circular.

3. The working time of persons providing legal aid must be confirmed by the following entities:

a) The time for performing activities specified in points a, b of Clause 1 of this Article shall be confirmed by the person directly working with the legal aid provider or by the Center, Branch, or organization contracted to provide legal aid;

b) The time for participating in meetings to check the submission, access, and public disclosure of evidence as specified in point c of Clause 1 of this Article shall be confirmed by the person assigned to resolve the case; the time for verifying, collecting, and evaluating necessary documents, objects, and evidence as specified in point c of Clause 1 of this Article shall be confirmed by the agency, organization, or individual where the legal aid provider conducts verification and collection of evidence;

c) The time for participating in taking statements from parties, witnesses, and other related persons as specified in point d of Clause 1 of this Article shall be confirmed by these persons or by the prosecutor, prosecution agency; the time for participating in appraisal activities, asset valuation, and other litigation participation tasks as required by the prosecution agency as specified in point d of Clause 1 of this Article shall be confirmed by the agency, organization, or individual where the appraised or valued assets are located or by the prosecution agency, prosecutor;

d) The time for performing activities specified in points đ, k of Clause 1 of this Article shall be confirmed by the Judge or Court Clerk, Mediation Session Clerk;

đ) The time for performing activities specified in point e of Clause 1 of this Article shall be confirmed by the prosecution agency, prosecutor;

e) The time for performing the activity specified in point g of Clause 1 of this Article shall be confirmed by the person directly working with the legal aid provider;

g) The time for performing the activity specified in point h of Clause 1 of this Article shall be confirmed by the person assigned to resolve the case or by the Center, Branch, or organization contracted to provide legal aid;

h) The time for performing activities specified in points i, l, m of Clause 1 of this Article shall be confirmed by the Center, Branch, or organization contracted to provide legal aid.

Article 6. Time for Participation in Administrative Litigation Proceedings

1. The basis for calculating the time to provide legal aid in administrative litigation proceedings cases includes:

a) Participating in activities as stipulated in points a, b, c, d, e, g, h, i, k, l, m Clause 1 of Article 5 of this Circular;

b) Participating in dialogue sessions.

2. The remuneration and allowance for providing legal aid when performing the tasks specified in points g, h, i, m Clause 1 of Article 5 of this Circular shall not exceed the number of sessions implementing these tasks according to the corresponding case cost allocation level set out in Appendix No. 03 issued together with this Circular.

3. The working time of persons providing legal aid must be confirmed by the following entities:

a) The time for performing the activities as stipulated in point a Clause 1 of this Article shall be confirmed by the agencies, organizations, or individuals as stipulated in Clause 3 of Article 5 of this Circular;

b) The time for performing the activity as stipulated in point b Clause 1 of this Article shall be confirmed by the Judge or the Clerk of the dialogue session.

Article 7. Time for Representation Outside Litigation Proceedings

1. The basis for calculating the time to provide legal aid in representation outside litigation proceedings cases includes:

a) Meeting and contacting the person receiving legal aid, their relatives; witnesses;

b) Studying the file and preparing materials to perform representation;

c) Verifying, collecting evidence, objects, and circumstances related to representation;

d) Working with agencies, organizations, or individuals related to the matter;

đ) Representing before agencies, organizations, or individuals authorized to resolve the case.

2. The working time of the person providing legal aid must be confirmed by the agencies, organizations, or individuals as follows:

a) The time for performing the activities as stipulated in points a, d, đ Clause 1 of this Article shall be confirmed by the person working with the person providing legal aid or the agency, organization, or individual related to the matter or the agency, organization, or individual authorized to resolve the case;

b) The time for performing the activities as stipulated in points b, c Clause 1 of this Article shall be confirmed by the Center, Branch, or organization that has signed a contract to provide legal aid.

Article 8. Method for Determining Time in Certain Special Cases

1. In the case where two or more persons providing legal aid assist one person receiving legal aid in the same case as prescribed by law, the time serving as the basis for payment of remuneration and allowance for the legal aid case is the actual time each person providing legal aid has performed, but the total time does not exceed 30 working days/case for participation in litigation proceedings or 20 working days/case for representation outside litigation proceedings.

2. In the case where the judicial agency temporarily suspends the criminal case

a) The time serving as the basis for payment of remuneration and allowance for the legal aid case is the actual time performed until the temporary suspension of the case;

b) When the case continues to be resolved, the time serving as the basis for payment of remuneration and allowance for the legal aid case is the actual time spent on subsequent tasks from the resumption of the case until its conclusion.

3. In the case of replacing or changing the person providing legal aid

a) The time serving as the basis for payment of remuneration and allowance for the legal aid case for the replaced or changed person is the actual time they have provided legal aid until the replacement or change;

b) The time serving as the basis for payment of remuneration and allowance for the legal aid case for the person appointed to replace is the actual time they perform subsequent tasks from the date of appointment.

If the person appointed to replace chooses the case cost allocation method, the remuneration and allowance for both persons (the replacer and the replaced or changed person) shall not exceed the corresponding case cost allocation level set out in Appendices No. 01, No. 02, and No. 03 issued together with this Circular.

4. In the case of providing legal aid to accused persons, persons proposed for prosecution, or victims at the time of arrest, detention, or as prescribed by the criminal procedure law, the time and confirmation of time shall be carried out as follows:

a) The time for verifying, collecting, and evaluating necessary documents, objects, and evidence related to the case shall be confirmed by the agency, organization, or individual where the person providing legal aid verifies and collects evidence;

b) The time for participating in taking statements from accused persons, proposed for prosecution, or victims or other related persons; participating in confrontation, identification, or voice recognition activities with investigators or prosecutors shall be confirmed by the investigator or prosecutor;

c) The time for working with accused persons in Detention Cells of Border Guard Posts, Temporary Holding Houses, or Detention Centers shall be confirmed by the accused person or Border Guard Post staff, Temporary Holding House staff, Detention Center staff, or the judicial agency;

d) The time for meeting with accused persons, proposed for prosecution, or their relatives; victims or their relatives; other related persons shall be confirmed by these persons but shall not exceed the number of sessions implementing this work according to the case cost allocation form set out in Appendix No. 01 issued together with this Circular based on the level of less serious crimes.

Chapter III

CASE COST ALLOCATION

Article 9. Case Fee Allocation

1. The form of case fee allocation shall only be applied to legal aid cases in the form of participation in litigation, chosen in writing by the person providing legal aid immediately after being assigned and not changed throughout the entire process of handling the legal aid case.

2. The complexity, procedural requirements, and content of each specific case shall be used to determine the level of case fee allocation as follows:

a) Apply the provisions on criminal offense classification under Clause 2, Article 1 of the Law Amending and Supplementing Certain Provisions of the Criminal Code No. 100/2015/QH13 dated June 20, 2017 to determine the level of case fee allocation for criminal litigation cases. The classification of criminal offenses must be applied at the time of choosing the form of case fee allocation and based on one of the following documents issued by the prosecution agency: Decision to Initiate Criminal Proceedings, Investigation Conclusion, Indictment, Prosecution Opinion, Judgment. In cases where there are multiple documents with different penalty ranges, the document with the higher penalty range shall be applied.

b) Apply the provisions under Clause 3, Article 337 of the Civil Procedure Code and the provisions under Article 5 of Circular No. 09/2018/TT-BTP dated June 21, 2018 of the Minister of Justice regarding criteria for determining complex and typical legal aid cases to determine the level of case fee allocation for civil litigation cases.

c) Apply the provisions under Clause 12, Article 3 of the Administrative Procedure Code and the provisions under Article 6 of Circular No. 09/2018/TT-BTP dated June 21, 2018 of the Minister of Justice regarding criteria for determining complex and typical legal aid cases to determine the level of case fee allocation for administrative litigation cases.

3. When implementing case fee allocation, the person providing legal aid must perform the following tasks:

a) For criminal litigation cases: perform the tasks stipulated in Clause 1, Article 4 of this Circular.

Detailed tasks that need to be performed and the corresponding maximum case fee allocation (converted according to working hours) for each case are set out in Appendix No. 01 promulgated together with this Circular. In cases where the converted number of working hours for case fee allocation in Appendix No. 01 is lower than three minimum wage units, the case fee allocation shall be three minimum wage units.

b) For civil litigation and administrative litigation cases: perform the tasks stipulated in Clause 1, Article 5 and Clause 1, Article 6 of this Circular.

Detailed tasks that need to be performed and the corresponding maximum case fee allocation (converted according to working hours) for each case are set out in Appendices No. 02 and No. 03 promulgated together with this Circular. In cases where the converted number of working hours for case fee allocation in Appendices No. 02 and No. 03 is lower than three minimum wage units, the case fee allocation shall be three minimum wage units.

4. When implementing case fee allocation, the person providing legal aid must list the tasks performed and confirm the tasks completed in the Task List (Form TP-TGPL-02) promulgated together with this Circular.

5. In cases where a legal aid case is provided through multiple stages of litigation as shown in the appendices promulgated together with this Circular, the level of case fee allocation shall be applied according to the stages but shall not exceed ten minimum wage units in total.

Article 10. Allocation of case expenses in certain special cases

1. In the case where two or more persons provide legal aid to one person receiving legal aid in the same case, the maximum allocation of case expenses shall be based on the actual work performed by each person providing legal aid, and shall be equal to 130% of the corresponding allocation rate set forth in the Appendices issued together with this Circular, but not exceeding ten times the basic salary.

Example 1: A is indicted for a crime with a penalty range classified as very serious. The Director of the Legal Aid Center assigns two persons to provide legal aid to A from the investigation stage to the first-instance trial stage. Based on the actual work performed by the two persons providing legal aid, the maximum allocation of case expenses is: 130% x 23 sessions = 29.9 sessionsHowever, since this number of sessions exceeds ten times the basic salary, the allocation of case expenses is limited to ten times the basic salary.

2. In the case where legal aid is provided to one person receiving legal aid who is charged with two or more offenses in the same case, the allocation of case expenses for the person providing legal aid shall be carried out as follows:

a) If the two offenses have penalty ranges classified under two different types of crimes, the maximum allocation of case expenses shall be based on the actual work performed and shall be equal to 130% of the allocation rate applicable to the case involving the higher type of crime, as shown in Appendix No. 1 issued together with this Circular, but not exceeding ten times the basic salary.

Example 2: A is charged with two offenses: one offense with a penalty range classified as serious, and one offense with a penalty range classified as very serious. The legal aid officer provides legal aid to A from the investigation stage to the first-instance trial stage. Based on the actual work performed, the maximum allocation of case expenses is: 130% x 23 sessions = 29.9 sessionsHowever, since this number of sessions exceeds ten times the basic salary, the allocation of case expenses is limited to ten times the basic salary.

b) If the two offenses have penalty ranges classified under the same type of crime, the maximum allocation of case expenses shall be based on the actual work performed and shall be equal to 130% of the allocation rate applicable to that case, as shown in Appendix No. 1 issued together with this Circular, but not exceeding ten times the basic salary.

Example 3: B is charged with two offenses both having a penalty range classified as very serious. The legal aid officer provides legal aid to B from the investigation stage to the first-instance trial stage. Based on the actual work performed, the maximum allocation of case expenses does not exceed: 130% x 23 sessions = 29.9 sessionsHowever, since this number of sessions exceeds ten times the basic salary, the allocation of case expenses is limited to ten times the basic salary.

3. In the case where the investigative authority temporarily suspends the case

a) The allocation of case expenses for the person providing legal aid shall be based on the actual work performed by the person providing legal aid up to the time of temporary suspension;

b) When the case continues to be resolved, the allocation of case expenses for the person providing legal aid shall be based on the work performed by the person providing legal aid from the time of continuing resolution until the conclusion of the case.

4. In the case of replacing or changing the person providing legal aid

a) The allocation of case expenses for the replaced or changed person shall be based on the actual work performed by the replaced or changed person up to the time of replacement or change;

b) The allocation of case expenses for the person assigned to replace shall be based on the actual work performed by the person from the time of assignment to replace.

If the person assigned to replace chooses the form of working hours based on actual working time, the remuneration and allowance for both persons (the replacer and the replaced or changed person) shall not exceed thirty working sessions per case according to Clause 1, Article 13 of Decree No. 144/2017/ND-CP of the Government dated December 15, 2017 detailing some provisions of the Legal Aid Law.

Chapter IV

IMPLEMENTING PROVISIONS

Article 11. Transitional Provisions

For activities arising before the effective date of this Circular, the provisions of Circular No. 18/2013/TT-BTP dated November 20, 2013 of the Minister of Justice guiding the calculation of working time and procedures for payment of costs for legal aid cases and Circular No. 05/2017/TT-BTP dated April 20, 2017 of the Minister of Justice amending and supplementing some articles of Circular No. 18/2013/TT-BTP dated November 20, 2013 of the Minister of Justice guiding the calculation of working time and procedures for payment of costs for legal aid cases shall continue to apply.

Article 12. Effective Date

1. This Circular takes effect from July 15, 2021.

2. This Circular replaces Circular No. 18/2013/TT-BTP dated November 20, 2013 of the Minister of Justice guiding the calculation of working time and procedures for payment of costs for legal aid cases and Circular No. 05/2017/TT-BTP dated April 20, 2017 of the Minister of Justice amending and supplementing some articles of Circular No. 18/2013/TT-BTP dated November 20, 2013 of the Minister of Justice guiding the calculation of working time and procedures for payment of costs for legal aid cases./.